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Federal Trade Commission v. Neovi

January 7, 2009


The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge


Presently before the Court are Defendants' motion for reconsideration, (Doc. No. 107) Plaintiff's opposition, (Doc. No. 111) and Defendants' reply. (Doc. No. 113.) Also before this Court are Plaintiff's and Defendants' supplemental briefs regarding the proper remedy in this case. (Doc. Nos. 106, 108, 109 & 114.) Finally, Plaintiff has also presented this Court with a motion to strike. (Doc. No. 116.) For the reasons stated below, this Court DENIES Defendants' motion for reconsideration, GRANTS Plaintiffs' proposed injunctive relief, and DENIES as moot Plaintiff's motion to strike.*fn1


The Court incorporates by reference the facts as described in its order granting in part Plaintiff's motion for summary judgment and denying Defendants' motion for summary judgment. (MSJ Order, at 2--8.)


On September 19, 2006, Plaintiff filed the instant action against Defendants. (Doc. No. 1.) On January 18, 2007, Judge William Q. Hayes denied Plaintiff's motion for a preliminary injunction.*fn2 (Doc. No. 32.) On January 11, 2008, this Court granted Plaintiff's 56(f) motion anddenied Defendants' motion for summary judgment without prejudice. (Doc. No. 71.) In March 2008, both Plaintiff and Defendants filed motions for summary judgment. (Doc. Nos. 82 & 89.) The Court issued an order granting Plaintiff's motion for summary judgment and denying Defendants' motion for summary judgment, but asked the parties to file supplemental briefing in regards to the Court's authority to impose Plaintiff's proposed remedies. (Doc. No. 105.) Both parties filed their supplemental briefs and Plaintiff filed a supplemental reply. (Doc. Nos. 106, 107, 109, & 114.) Defendants also filed a motion asking the Court to reconsider its order, Plaintiff filed an opposition, and Defendant filed a reply. (Doc. Nos. 108, 111, & 113.)


I. Defendant's Motion for Reconsideration

Defendants moved this Court to reconsider its prior order granting in part Plaintiff's summary judgment motion. Defendants raise six issues*fn3 on which they claim this Court erred in its prior order.*fn4 As explained below, the Court is unpersuaded by any of these arguments and therefore denies Defendants' motion.

A. Legal Standard

Under Federal Rule of Civil Procedure 54, "any order . . . that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties . . may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities." Fed. R. Civ. Proc. 54(b). In the Southern District of California, motions for reconsideration are also governed by Local Rule 7.1(i). Under Local Rule 7.1(i)(1), a party may apply for reconsideration "[w]henever any motion or any application or petition for any order or other relief has been made to any judge and has been refused in whole or in part." S.D. Cal. CivLR 7.1(i). The moving party must provide the Court with an affidavit setting forth, inter alia, "what new or different facts and circumstances are claimed to exist which did not exist, or were not shown." Id.

Generally, courts will reconsider a decision if a party can show (1) new facts, (2) new law, or (3) clear error in the Court's prior decision. See, e.g., School Dist. No. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993); Hydranautics v. FilmTec Corp., 306 F.Supp. 2d 958, 968 (S.D.Cal. 2003). Ultimately, the decision on a motion for reconsideration lies in the Court's sound discretion. Navajo Nation v. Norris, 331 F.3d 1041, 1046 (9th Cir.2003) (citing Kona Enter., Inc. v. Estate of Bishop, 229 F.3d 877, 883 (9th Cir.2000)).

B. Defendants' Failure to Comply With Local Rule 7.1(i)(1)

Before the Court addresses any substantive questions, it must address the legal deficiencies in Defendants'motion. First, the motion does not comply with Local Rule 7.1(i)(1). Defendants did not submit an affidavit or certified statement with their motion. They also have not offered the Court new facts or circumstances that were not presented in their prior summary judgment papers. Instead, Defendants claim that they need not follow Local Rule 7.1(i)(1) because their motion is "based on judicial error." (Reconsideration Reply, at 2.) Defendants, however, do not explain why this excuses them from complying with the Local Rule.

Second, Defendants' motion simply restates the same arguments and citations previously presented to and rejected by this Court. "A motion for reconsideration is not an opportunity to renew arguments considered and rejected by the court, nor is it an opportunity for a party to re-argue a motion because it is dissatisfied with the original outcome." Devinsky v. Kingsford, 2008 WL 2704338, at *2 (S.D.N.Y. 2008). A court need not consider a motion for reconsideration relying on arguments previously made and ruled on. See, e.g., Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004); Strato v. Ashcroft, 388 F.3d 651, 655 (8th Cir. 2004); Official Comm. of Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 167 (2d Cir. 2003); Sithon Maritime Co. v. Holiday Mansion, 177 F.R.D. 504, 505 (D.Kan.1998).

It would be proper for this Court to summarily reject Defendants' motion without further comment. However, Defendants appear to fundamentally misapprehend the basis for and reasoning behind this Court's prior order. Therefore, the Court will exercise its discretion and address the substance of Defendants' motion.

C. Identification of an Unfair Business Practice

Defendants begin by arguing that the Court's order did not "define just what Defendants' 'unfair practice' actually consisted of." (Memo. ISO Reconsideration Motion, at 3.) Defendants suspect that their unfair practice consisted of "Defendants' creation and implementation of the Qchex system and their failure to maintain reasonable verification measures." (Id.) However, according to Defendants,"[t]his . . . is not what the FTC pled." (Id.) Rather, the FTC's complaint is allegedly based on "Defendants 'creat[ion] and deliver[y]' [of] unauthorized checks." (Id.) Defendants claim that under the FTC's alleged theory, the Court could not possibly find an unfair practice because Qchex did not create or deliver checks,*fn5 but merely provided "a template and delivery options." (Id., at 4--5.) The Court finds this argument unpersuasive. This Court explained the standard for finding an unfair practice in its prior order. "A practice is unfair under the FTC Act if: (1) it causes or is likely to cause substantial injury to consumers, (2) the injury is not reasonably avoidable by consumers themselves, and (3) the injury is not outweighed by countervailing benefits to consumers or to competition." (MSJ Order, at 10 (citing 15 U.S.C. § 45(n)).) Plaintiff proved each of these three prongs and therefore the Court found that Defendants had engaged in an unfair practice. (See MSJ Order, at 10--15.) Defendants' argument here does not demonstrate clear error because it does not address the FTC Act test or any of its elements. Instead it simply restates two arguments that this Court has already rejected.

First, the Court explained that Defendants engaged in an unfair practice by "creat[ing] and deliver[ing] checks without a reasonable level of verification" (Id., at 13.) The order mentioned this repeatedly and, in spite of claiming ignorance, Defendants identified that finding. (See id., at 13--15.) This finding is consistent with the FTC's allegations that "Defendants . . . injured individuals and businesses by creating and delivering checks without first verifying that the customers . . . had authority to draw such checks on the [specified] bank accounts." (Compl. ¶ 27.)

Moreover, Defendants "created" these checks. The complaint does not use "create" in a technical sense,*fn6 but rather in the practical sense of bringing the fraudulent checks into being. Defendants printed, or provided the means to print, the fraudulent checks which led to this action, that is, they brought those fraudulent checks into existence. (MSJ Order, at 3--5.) Moreover, in printing these checks, Defendants made them ...

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